J & B Hopkins Ltd v A & v Building Solution Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Roger ter Haar |
| Judgment Date | 06 October 2023 |
| Neutral Citation | [2023] EWHC 2475 (TCC) |
| Court | King's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2022-000444 |
[2023] EWHC 2475 (TCC)
Mr Roger ter Haar KC
Sitting as a Deputy High Court Judge
Case No: HT-2022-000444
Case No: HT-2023-000006
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Royal Courts of Justice
Rolls Building
London, EC4A 1NL
James Frampton (instructed by Hawkswell Kilvington) for the Claimant
Alex Paduraru (a director of the Defendant Company) for the Defendant.
Hearing date: 15 September 2023
APPROVED JUDGMENT
This judgment was handed down by the court remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 6 October 2023 at 10.30am
Mr Roger ter Haar KC:
There are two actions before the Court arising out of disputes in respect of the same project.
The first of those two actions in time (“Action 444 of 2022”) was brought by J & B Hopkins Limited (“J&BH”) to enforce an adjudication decision of Mr Smith dated 6 July 2022 (“the Smith Decision”). In a judgment handed down on 15 February 2023 ( [2023] EWHC 301 (TCC)) I granted summary judgment in the sum of £96,918.88.
The second of those two actions (“Action 6 of 2023”) was brought by A & V Building Solution Ltd (“A&V”) and claims various sums from J&BH as I discuss in more detail below.
There had previously been a third action started by J&BH in which J&BH challenged whether there was a valid payment application. Mr. Blizzard produced a decision dated 19 January 2022. The action started as a pre-emptive strike before Mr. Blizzard had produced his decision. That action (“Action 464 of 2021”) was first decided by Eyre J. in a judgment dated 12 April 2022, but an appeal to the Court of Appeal was substantially successful ( [2023] EWCA Civ 54).
This case came before me for a second time on 1 June 2023. On that occasion the matters before me were as follows:
(1) To determine the amount of interest to be awarded in J&BH's favour in action 444 of 2022;
(2) To determine the appropriate award of costs in action 444 of 2022;
(3) To determine A&V's application for a stay of execution in action 444 of 2022;
(4) To determine J&BH's application for a stay of action 6 of 2023 until the enforcement judgment in action 444 of 2022 has been complied with;
(5) To determine J&BH's application for summary judgment and/or a strike out of the Claim Form in action 6 of 2023;
(6) To determine J&BH's application for security for costs in action 6 of 2023;
(7) To determine A&V's application for Judgment in Default to be entered for A&V against J&BH in the sum of £370,611.63.
In a judgment handed down on 16 June 2023, I determined issues (1), (2) and (7), and allowed application (5) in part. Otherwise I adjourned the applications.
My judgment handed down on 16 June 2023 can be found under Neutral Citation Number [2023] EWHC 1483 (TCC). This judgment should be seen as a supplement to that earlier judgment. Accordingly I do not repeat herein the background materials contained in that judgment.
As part of the Order following my judgment I ordered:
Strike out
2. Items 3, 4 and 5 under the heading “Value” in A&V's claim form in action 6 of 2023 are struck out.
3. A&V is to file and serve a CPR compliant Amended Particulars of Claim in action 6 of 2023 by a date to be determined at the Adjourned Hearing (as defined below) in which:
a. The figure at item 2 under the heading “Value” is amended from £34,800 to £17,400.
b. The matters set out at paragraph 43 of the judgment dated 16 June (“the 16 June Judgment”) are addressed in a manner compliant with the CPR.
c. Items 3, 4 and 5 under the heading “Value” are removed.
On 30 June 2023 A&V served a fresh pleading headed “Claimants' Particulars of Claim [Amended Pleading] in respect to matters of the Final Account Claim following the Approved Judgment dated 16 th June 2023 of Mr Roger ter Haar KC sitting as a Deputy High Court Judge” (“the 30 June pleading”).
I accept that this was a good faith attempt to comply with my Order. Mr. Frampton on behalf of J&BH submits that parts of the pleading should be struck out. As will be seen below, I take the view that in its present form the 30 June pleading does not comply with my previous order, and, in any event, is a somewhat inconvenient document as an agenda for the handling of the disputes in this matter.
Accordingly, the first matter with which I must deal is the state of that pleading.
As set out above, I had before me on the last occasion a number of applications which in one way or another turned upon the state of A&V's finances and the financial position of those standing behind A&V. I have further information now available to me, and consider applications (3), (4) and (6) in the list set out at paragraph 5 above.
The 30 June Pleading
It seems to me most useful to examine the pleaded case on a claim by claim basis.
The claim is said to be a claim for the assessment of the final account in the contract between the parties, but it includes claims for breach of contract which need to be identified and analysed.
What is needed is a pleading in a form to which J&BH can conveniently plead, and in a format from which the Court can easily see the differences between the Parties, that is to say a Scott Schedule. In the course of the hearing on 14 September the surveyor assisting A&V, Mr. Judd, made it clear that he fully understands what a Scott Schedule should look like and contain.
Value of original contract works done
Before each of the Adjudicators there was a dispute as to the amount of work contained in the original contract which had been done and therefore as to the value of that work.
What is needed here is an identification of the work item, the percentage of completion claimed by A&V and the resulting money claimed. The money claimed should be in a separate column.
This information is presently available, but in a separate document to the 30 June pleading itself. This is not convenient: the Scott Schedule will contain the above details.
The 30 June pleading contains a certain amount of narrative at paragraphs 2.1 to 3.10 explaining the merits of A&V's case. The problem with this is that it mixes up evidence, comment and claim in a way which makes it difficult to handle the claim.
In my view, the Scott Schedule should generally seek to avoid such commentary, however I can see that it would be helpful to have facts pleaded which support the factual basis of the state of the works: I have in mind in particular what I understand to be A&V's case that until a late stage J&BH accepted that elements of the work were far more complete than J&BH now contends: this can be done shortly (e.g. “in interim valuation No. Z, J&BH accepted that element X of the works was Y percent complete”). It may also be that cross-reference to photographs or the like illustrating the state of the works would be of assistance (e.g. “the state of completion of element X of the works at date YY is shown on photographs reference Z1, Z2 etc”).
Variations 1 to 22
It was explained to me during the hearing that what are described as “variations” in the 30 June pleading are in legal analysis a mixture of variations properly so called and claims for damages for breach of contract.
Section 4 of the 30 June Pleading sets out A&V's case as to Variations. In order to understand the case, it is necessary to cross-refer to a Schedule at page 57 of the bundle placed before the Court by A&V for the June hearing. This is obviously inconvenient.
Within Section 4 of the 30 June Pleading and in that Schedule Variations 1 to 22 are conventional claims for additional work. So far as these are concerned, what the pleading needs to do is:
(1) Set out the date and form of the instruction: was it oral or in writing? If oral, who instructed the work, when and how? If in writing, identifying the relevant paperwork.
(2) Identify the physical scope of the work;
(3) Identify the materials and labour supplied;
(4) Set out the amount claimed;
(5) If it is said the J&BH has accepted that the work was varied work for which A&V is entitled to be paid, identifying when and how J&BH did so.
Variations 23 and 24
These seem to me to be in a different category from Variations 1 to 22, as these are claims for disruption and uneconomic working.
These are conceptually legitimate claims (I am not judging whether they are factually justified). It seems to me that it would be helpful to have these identified not as “Variation” claims, but as claims for uneconomic working.
As to the factual basis of these claims, that seems to me to be identified sufficiently clearly in paragraphs 4.12 and 4.13 of the 30 June pleading: what is needed is to insert those particulars in the Scott Schedule, coupled with a statement as to what sums are claimed and how they are calculated.
One thing which is essential is that when the case is re-pleaded, each separate paragraph and sub-paragraph must be numbered so that J&BH can plead thereto.
Variation 25
As with Variations 23 and 24, Variation 25 is not a Variation in the sense normally understood. What it is is a claim for loss and expense said to be caused by delays justifying an extension of time to the Contract.
Paragraph 4.14 of the 30 June pleading contains a lot of information which needs to be broken down into numbered sub-paragraphs. What is missing at the moment is a clear statement of how the sum of £30,000 claimed in the Schedule is calculated and justified.
No application for strike out of Variations 1 to 25
I should record that whilst I have criticised the...
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J & B Hopkins Ltd v A & v Building Solution Ltd
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